International Realty & Securities Corp. v. Vanderpoel
| Decision Date | 02 October 1914 |
| Docket Number | 18,722 - (225) |
| Citation | 148 N.W. 895,127 Minn. 89 |
| Parties | INTERNATIONAL REALTY & SECURITIES CORPORATION v. E. F. VANDERPOEL and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Dodge county against E. F Vanderpoel, Eugene N. Best and Eva M. Best, his wife, to ascertain the amount of damages sustained by plaintiff on account of the fraudulent representations by defendant Vanderpoel in the sale of land, for an accounting between plaintiff and defendant Vanderpoel under the contracts mentioned, and for specific performance by defendants upon the performance by plaintiff of its part of the contract. The facts are stated in the opinion. Defendants' motion for judgment on the pleadings in their favor (1) on the issue of the right of plaintiff to relief by way of a decree for specific performance; (2) on the issue of the right of plaintiff to relief by way of damages; (3) on the issue of title and right of possession to the lands in question; (4) on all the issues made by the pleadings, was granted, Hale J. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Affirmed.
Election of remedies.
1. Bringing an action to rescind an executory contract for fraudulent misrepresentations as to the quality of the land, and thereafter voluntarily dismissing such action because the right to rescind had been lost by laches, is not such an election of remedies as will debar plaintiff from subsequently bringing an action to enforce specific performance of such contract.
Damages for fraud.
2. As damages for the fraud cannot be applied upon the purchase price unless the vendee so elects, they do not operate as payment thereon until he has made such election.
Land contract -- statutory notice to rescind -- reinstatement.
3. Where the vendor has given the statutory notice to terminate the contract for nonpayment of overdue installments and the time limited by statute for making such payment has expired, the vendee cannot reinstate the contract by thereafter electing to apply his claim for damages in discharge of such installments.
Measure of damages.
4. The amount of damages recoverable for fraudulent misrepresentation as to the quality of the property sold is the difference between the purchase price and the value of the property in its true condition.
Roberts & Strong, for appellant.
M. H. Boutelle, E. N. Best and A. M. Higgins, for respondents.
On November 23, 1910, defendant Vanderpoel contracted to sell 280 acres of land to plaintiff for the sum of $60,800. The purchase price was payable in installments as follows: $6,000 at the execution of the contract; $4,000 on or before March 1, 1911; $5,000 on or before November 1, 1911; $5,800 on or before May 1, 1912; and $40,000 on or before May 1, 1918. Deferred payments bore interest at the rate of six per cent per annum payable November 1, 1911, and annually thereafter. The contract also provided that time was of the essence thereof; that the vendor could declare the contract null and void in case of any default on the part of the vendee; that until such default the vendee should have possession of the property; and that in case of such default the vendee should surrender possession of the property to the vendor on demand. After the execution of the contract, defendant Vanderpoel conveyed his interest therein, together with the title to the land, to defendant Eugene N. Best as security for advances made to him by Best. Plaintiff paid the instalment of the purchase price due at the execution of the contract and the instalment due March 1, 1911, and procured an extension of the time for paying the two next installments until December 1, 1912, but never paid them.
On December 24, 1912, plaintiff brought an action to rescind the contract and to recover back the payments already made, on the ground that it was induced to enter into the contract by false and fraudulent representations on the part of Vanderpoel as to the character and condition of the land. The defendants answered and among other things denied specifically all the charges as to misrepresentation. Thereafter, and in February, 1913, plaintiff sought to amend the complaint so as to change the action from one for rescission to one for specific performance. The trial court would not permit the amendment and thereupon plaintiff voluntarily dismissed the action.
On January 27, 1913, the defendants served notice on plaintiff as provided by statute (now section 8081, G.S. 1913) that the contract would be cancelled and terminated 30 days from the service thereof, unless all overdue principal and interest were paid prior to the expiration of such 30 days. The installments of the principal and interest then past due and unpaid aggregated the sum of $14,455.28. Plaintiff neither made nor tendered...
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